LW2252 LAW OF PROPERTY – SEMESTER 2

TOPIC 8: ADVERSE POSSESSION

Squatter’s Children  

On the unbreathing sides of hills weak flashes of inquiry

they play, a specklike girl and boy, direct as is the puppy’s bark.
alone, but near a specklike house. But to their little, soluble,
The sun’s suspended eye unwarrantable ark,
blinks casually, and then they wade apparently the rain’s reply
gigantic waves of light and shade. consists of echolalia,
A dancing yellow spot, a pup, and Mother’s voice, ugly as sin,
attends them. Clouds are piling up; keeps calling to them to come in.
   
a storm piles up behind the house. Children, the threshold of the storm
The children play at digging holes. has slid beneath your muddy shoes;
The ground is hard; they try to use wet and beguiled, you stand among
one of their father’s tools, the mansions you may choose
a mattock with a broken haft out of a bigger house than yours,
the two of them can scarcely lift. whose lawfulness endures.
It drops and clangs. Their laughter spreads Its soggy documents retain
effulgence in the thunderheads, your rights in rooms of falling rain.

(Elizabeth Bishop 1911-1979; from Questions of Travel, 1965)

What is this topic about?

It deals with a way in which a person can get ownership of land without the permission of the legal
owner, through adverse possession or “squatting”. The idea is that the owner of land is entitled to
bring a case in trespass against a person who is trespassing on her land. Like in relation to other rights
to sue someone else, this right to sue for trespass is covered by a limitation period – normally, but not
always, 12 years. If the owner doesn’t sue within the 12 years, her right to sue is lost and the law tidies
things up by providing that the owner’s title to the land is also extinguished. The topic looks at the
rules which decide when a person will succeed in an adverse possession claim, including the more
complicated case where the land was occupied by a tenant. In recent years, the doctrine of adverse
possession has been criticised as being too generous to squatters and allowing, in effect, the theft of
land. In England, the scope of adverse possession has recently been cut down a lot by legislation, so
that the original owner of the land must be told about the claim and usually has two years to eject the
squatter. It is possible that similar reform may eventually take place in Ireland.

READING

Lyall on Land Law, 4th ed by Niamh Howlin

and Noel McGrath, Chapter 25
Pearce and Mee, 3rd ed, Chapter 13
Wylie on Irish Land Law, 6th ed, Chapter 25 (available as an ebook through the Boole
library website)
Dunne v Iarnroid Eireann [2016] IESC 47
Woods ‘The Position of the Owner under the Irish Law on Adverse Possession” (2008)
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30 Dublin University Law Journal 298 (on Westlaw.ie)

Perry v Woodfarm Homes Ltd [1975] IR 104 (on Justis)
Cobb & O’Mahony, “Living outside the system? The (im)morality of urban squatting”
(2007) Legal Studies 236
Mee, “A minimal approach to adverse possession” [2015] Conv 255 (on Westlaw.uk)

BASIC PRINCIPLES
Adverse possession under Statute of Limitations 1957 – a method of acquiring title to
land against the will of the owner. If a person is trespassing on land, then the owner
must sue within a limited period (usually 12 years). If not, the legislation extinguishes
the paper owner’s title to the land as well as his right to sue. The rationale for this
process is that justice requires some limit to be placed on the time within which a claim
can be brought, since stale claims can give rise to injustice. The legislation also provides
certainty and helps to settle or “quiet” titles to land, preventing disputes from arising
which could threaten long-standing occupation of the land.

In more modern times, this traditional rationale has been questioned and the law has
changed in England and Wales: see Land Registration Act 2002 (see Part 9 and Schedule
6). Under the new English regime in relation to registered land, after 10 years of
adverse possession, a squatter can apply to be registered as owner of the relevant land.
However, notice must be given to the registered owner, who is given 2 years to
commence proceedings for possession of the land. Thus, the registered owner of the
land cannot be deprived of title without being given time to evict the squatter (assuming
the notice reaches the owner). There is an exception in the case of a neighbouring
landowner who has been in possession of land for 10 years in the reasonable belief that
the land in question belongs to her.

The Law Reform Commission Report on the Reform and Modernisation of Land Law and
Conveyancing Law (July 2005) pp 322-339 contained proposals which would have
severely limited the scope of adverse possession, broadly along the lines of the
approach in the English registration of title legislation. These proposals were not
implemented in the 2009 Act. Future reform remains a possibility.

In theory, the statute does not operate to convey the paper owner’s title to the squatter
(so there is no “parliamentary conveyance”). Instead, the squatter’s possessory title is
promoted to being the best available due to the extinction of the paper owner’s title.
Note, however, that this theoretical position does not appear to translate fully into
practice in the context of registered land, as will be discussed later in this topic.

Human rights issues: JA Pye (Oxford) Ltd v United Kingdom [2005] ECHR 921 – this case
concerned a company that had lost title to very valuable agricultural land as a result of a
successful adverse possession claim. It was initially held by the European Court of
Human Rights (ECtHR) that the type of adverse possession regime which still exists in
this jurisdiction was contrary to Art.1 of Protocol 1 to the European Convention on
Human Rights. However, this decision was subsequently reversed by the Grand
Chamber of the ECtHR: [2007] ECHR 700.
 
LENGTH OF LIMITATION PERIOD
See s.13 Statute of Limitations: 12 years for land.
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30 years for State-owned land (does not include land owned by local authorities); 60
years if State land is foreshore.
6 years for claims based on a will or intestacy.
6 years for claims to rent.

WHEN WILL LIMITATION PERIOD START TO RUN?

Time runs from the time the action accrues:
(i) the owner must have abandoned land or been dispossessed and
(ii) someone else must have gone into adverse possession
 
No adverse possession if occupation by permission or under tenancy: Bellew v Bellew
[1982] IR 447 – father had been given permission to farm the disputed land pending the
conclusion of negotiations between his son and his daughter-in-law.
 
NATURE OF ADVERSE POSSESSION
In Dunne v Iarnroid Eireann [2016] IESC 47, the Supreme Court emphasised that the
question of whether the acts of the claimant were sufficient to establish that he or she
was in adverse possession of the land depends on the facts of the individual case and on
the nature of the disputed land. Fencing off the land, or otherwise restricting other
people’s access to the land, may be one significant indicator. See also Byrne v Dublin City
Council [2018] IEHC 597.

Doyle v O’Neill High Court, unreported, January 13 1995: “the adverse user must be of a
definite and positive character and such as could leave no doubt in the mind of a
landowner alert to his rights that occupation adverse to his title was taking place”.

Murphy v Murphy [1980] IR 183 – irrelevant if parties mistaken as to true ownership

(but note the misguided approach in Kelleher v Botany Weaving Mills Ltd [2008] IEHC
417).
  
RELEVANCE OF INTENTION OF OWNER
Leigh v Jack (1879) 5 Ex D 264 – interpreted as creating a rule that there would be no
adverse possession if the squatter’s occupation was not interfering with a specific future
plan which the owner had for the land. On the facts of this case, use by a squatter of a
strip of land for storing heavy materials was held not inconsistent with the intention of
the owner to dedicate the land in the future as a highway.
 
Rejection of doctrine:
J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419: Lord Browne-Wilkinson – “The
suggestion that the sufficiency of the possession can depend on the intention not of the
squatter but of the true owner is heretical and wrong.”

Durack Manufacturing v Considine [1987] IR 677 – an empty field next to a factory was
intended for possible future development; a neighbour made a successful claim to
adverse possession on the basis of having used it for grazing and having fenced it off to
avoid his cattle straying onto the site of the factory.

Contrast Cork Corporation v Lynch (1985) [1995] 2 ILRM 598 – claim failed despite use
of land as a car park, including tarmacking and enclosing with a chain link fence.
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Dunne v Iarnroid Eireann [2007] IEHC 314 – dispute over triangle of land near railway
station. Clarke J: “I prefer the reasoning of Barron J. in Durack Manufacturing in which
he accepted that factors such as the future intended use of the property by the party
with paper title might be a factor in determining whether the necessary intention was
present in the party claiming adverse possession but was not otherwise a matter
properly taken into account”. On appeal, [2016] IESC 47, the Supreme Court pointed out
that the issue did not arise on the facts and, therefore, the controversy did not need to
be resolved.

See further Woods ‘The Position of the Owner under the Irish Law on Adverse
Possession” (2008) 30 Dublin University Law Journal 298 (on Westlaw.ie) and Woods,
“Protection for Owners under the Law on Adverse Possession: An Inconsistent Use Test
or a Qualified Veto System?” (2020) 57 Osgoode Hall Law Journal 340-377 available
here.
 
Requirement of animus possidendi (an intention to possess) on the part of the squatter:
Powell v McFarlane (1977) 38 P & CR 452 (on Lexis); J A Pye (Oxford) Ltd above – an
“intention, in one’s own name and on one’s own behalf, to exclude the world at large,
including the owner with the paper title if he be not himself the possessor, so far as is
reasonably practicable and so far as the processes of the law will allow”. Held in that
case that it was not fatal that the squatter would have been willing to pay a rent if one
was demanded.

It is difficult to see the justification for the requirement of an intention to possess, as

opposed to evidence of actual possession for longer than the applicable limitation
period: see Rhys “Adverse possession, human rights and judicial heresy” [2002] Conv
470 (on Westlaw.uk). However, the requirement forms part of Irish law.

Limited acts on the part of the owner are sufficient to indicate that she has not lost
possession: presumption of continuation of possession. See Dunne v Iarnroid Eireann
[2016] IESC 47 (defendant had, at one point, carried out work on a portion of the land
and, at another stage, had sent out a contractor to mend fences after a complaint from a
neighbour).

In principle, minimal acts on the part of the owner will not be sufficient to defeat an
adverse possession claim if the owner has already been dispossessed or discontinued
possession. This point was overlooked by the High Court in Dooley v Flaherty [2014]
IEHC 528, criticised in Mee, “A minimal approach to adverse possession” [2015] Conv
255 (on Westlaw.uk), where the claimant had been living for many years in the disputed
house but failed in his claim to adverse possession because the defendant had had
repairs made to the house’s roof and had insured the property during the relevant
period.

SUCCESSIVE SQUATTERS
The principle of relativity of title comes into play here.

(A) If one squatter is in adverse possession for (say) 8 years and then sells or gives his
rights to another squatter, who immediately goes into occupation and stays in adverse
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possession for a further 4 years, then the title of the original owner is extinguished.

(B) If one squatter is in adverse possession for (say) 10 years and is then dispossessed
by a second squatter who remains in adverse possession for a further 2 years, then the
position is as follows: the title of the original owners is extinguished as soon as there is
12 years of continuous adverse possession but the original squatter has 10 more years
in which to eject the second squatter (i.e. a total of 12 years from the time he was
dispossessed).

If there is a gap between the two periods of squatting then possession is regarded as
reverting back to the owner and the clock goes back to zero.

These principles are illustrated by Mount Carmel Investments Ltd v Thurlow [1988] 1
WLR 1078 (on Lexis): In 1970, a squatter named Renwick took occupation of a
property. In 1974, he allowed the defendant into possession with his permission. Later,
that year, Renwick was forced to leave the country hurriedly to avoid arrest and the
defendant was left in possession. The original owner purchased Renwick’s rights from
him for £1 and, in 1983, tried to evict the defendant.

The court held that the crucial question was whether (i) the defendant had remained in
occupation of the property in 1974 against the will of Renwick or (ii) Renwick had
abandoned his rights to the defendant.

If, in 1974, the defendant had gone into adverse possession as against Renwick, then
Renwick would have had 12 years within which to take action to recover possession
against the defendant. This meant that the original owner, who now stood in the shoes
of Renwick, would have had up to 1986 to evict the defendant.

However, the court held that Renwick had abandoned his rights to the defendant. Since
there was no gap in the occupation of the property, it was possible to add together the
two periods of squatting (Renwick: 1970 to 1974 and Defendant: 1974 to 1983) to
make a total of more than 12 years of squatting. This meant that the rights of the
original owner were extinguished in 1982. Renwick could not evict the defendant
because he had abandoned his rights in 1974 and, therefore, the original owner could
not succeed on the basis of having purchased his rights from him.
 
ADVERSE POSSESSION AGAINST CO-OWNERS
Time will run against an absent co-owner in favour of those occupying the property for
their own benefit: s.21 of the 1957 Act; Moore v Moore [2010] IEHC 462 (note also the
suggestion in this case that it is not possible to be in adverse possession against a
spouse, even in a case of desertion).
 
EXTENDING THE LIMITATION PERIOD
(i) Owner under a disability (minor or of unsound mind) at start of period. See s.48 and
s.49 of the Statute of Limitations – 6 years from end of disability or death.
 
(ii) Cause of action is based on fraud/concealed by fraud.
 See s.71 Statute of Limitations.
 
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STOPPING THE PERIOD FROM RUNNING 

The period continues to run until (i) squatter abandons possession; or (ii) owner
recovers possession; (iii) owner commences legal proceedings (merely sending
threatening letters is insufficient: Mahon v O’Reilly [2010] IEHC 103) or (iv) there is a
written signed acknowledgement of title by squatter (Statute of Limitations 1957, ss.50-
60): Clarke v Edgington [1964] 1 QB 367: letter offering to purchase the land.
 
Issue of unsolicited permission to use the land: BP Properties v Buckler (1987) 55 P. &
C.R. 337 – squatter given permission by letter to stay rent-free on land; she neither
accepted nor repudiated this permission but it was held by the English Court of Appeal
that her occupation was no longer adverse. See also Smith v Molyneux [2016] UKPC 35.
 
ADVERSE POSSESSION BY TENANTS
During lease, tenant cannot acquire leased property by adverse possession. Other land
squatted on by tenant will belong to landlord upon expiry of lease unless circumstances
indicate the contrary: Kingsmill v Millard (1855) 11 Exch 313.
 
Non-payment of rent: no effect on landlord’s title but each instalment of rent becomes
statute-barred after six years.
 
Payment of rent to person other than landlord: wrongful receipt of rent of more than
one pound per year under a lease in writing is treated as adverse possession by the
wrongful recipient against the interest of the landlord: s 17(3) and s 18(4)(b).
 
ADVERSE POSSESSION OF LEASEHOLD PROPERTY
Tenant’s title extinguished after 12 years, time does not run against landlord until
expiry of lease.
 
Arranged surrender possible according to House of Lords in Fairweather v St
Marylebone Property Co Ltd [1963] AC 510.
 
Not followed by Irish Supreme Court in Perry v Woodfarm Homes Ltd [1975] IR 104 (on
Justis) (emphasising the nemo dat quod non habet principle).

However, in the context of unregistered land, the law is unsatisfactory for both parties
in that the former tenant is still contractually liable to the landlord and the squatter is
still liable to be evicted on the basis of an arranged forfeiture.
 
Possibility of estoppel: Ashe v Hogan [1920] IR 159 (on Justis).
 
The problem appears to have been circumvented in relation to registered land, where in
practice the squatter is registered with the title of the paper owner, leading to a
“parliamentary conveyance” contrary to strict theory.
 
See Wallace “Adverse Possession of Leaseholds – The Case for Reform” (1975) 10 Irish
Jurist 74 (on Westlaw.ie); Law Reform Commission Report on Title by Adverse
Possession of Land (LRC 67-2002) (recommending the introduction of a “parliamentary
conveyance”). Note the limited reform introduced by s.50(d)(ii) of the Registration of
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Deeds and Title Act 2006, which allows a person who has extinguished the title of a
tenant of unregistered leasehold land to apply to have their title registered, provided
that at least 21 years, or such lesser period as may be prescribed by law, remains
unexpired on the lease.

Law of Property 2020-2021 (Dr Claire Murray)